Croton v The Queen

[1967] HCA 48

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan and Menzies JJ.

CROTON v. THE QUEEN

(1967) 117 CLR 326

21 December 1967

Criminal Law

Criminal Law—Larceny—Larceny by joint owner—Withdrawal from joint bank account by one of two owners—Deposit of proceeds into personal account—Fraudulent misappropriation—Crimes Act, 1900 (N.S.W.) (applicable in A.C.T.), ss. 117*, 120, 134, 162**—Crimes Ordinance 1931 (A.C.T.).

Decisions

December 21.
The following written judgments were delivered: -
BARWICK C.J. The applicant for leave to appeal was convicted in the Supreme Court of the Australian Capital Territory in September last upon three counts of larceny, in each case, of a number of dollars. (at p327)

2. The salient facts as they were evidenced before the jury may be briefly stated. The applicant, a married man living apart from his wife, became associated with a woman by name Helena Irene Webster who had divorced her husband. She lived in Canberra along with her young son in a house owned by her father. She was a school teacher in receipt of a substantial salary and as well in receipt of alimony paid by her erstwhile husband. The applicant and Mrs. Webster fell in love with each other and became engaged to be married. According to Mrs. Webster, who claimed she was ignorant of his marital status, the applicant went so far as to name the day. However, it is common ground that he frequently slept and kept house with her, for a period occupying the house next door to the house in which she lived. He was a mechanic in receipt of substantial wages and it is common ground the pair lieved on his wages. Upon his proposal that they should do so, it was agreed between them that they should endeavour to bank the wages of one of them, living on the wages of the other. The purpose of thus saving some money was said by Mrs. Webster to provide the cost of a honeymoon: but this project falling through, the purpose was changed to the purchase of a home: but this the applicant denied. (at p327)

3. Accordingly, the pair went to the Commonwealth Savings Bank, Ainslie, and there opened a joint account in the names of both but with authority in each to operate the account. The initial deposit was said to be a cheque for Mrs. Webster's salary. The account was subsequently fed for the most part by such cheques though cheques received by Mrs. Webster for maintenance were said also to have been deposited in it. The deposits were usually made by the applicant who retained possession of the bank book. Withdrawals were made from the account from time to time but never by Mrs. Webster and, according to her, never with her knowledge or particular authority. (at p328)

4. On 4th April 1967 the applicant withdrew $130 from the account. On 7th April he withdrew a further $100 and on the same day he withdrew the then balance in the account, namely, $736. The applicant deposited in a savings account in his own name with the A.N.Z. Bank, Queanbeyan, on the same 7th April the sum of $220 which he admitted was the same money he had withdrawn from the joint account. He also deposited in a current account in his own name with the same A.N.Z. Bank on the same 7th April about $600 which he admitted was part of the sum withdrawn on that day from the joint account. (at p328)

5. Mrs. Webster specifically claimed that she did not authorize any of these transactions, and that until the subsequent 6th June, did not know of the withdrawals. It seems, however, that the pair had a considerable domestic difference on or about 7th April. I find no need to further recount or to describe their personal relationships or to discuss or pass judgment upon the merits of the personal conduct of either. (at p328)

6. The terms of s. 117 of the Crimes Act, 1900 of the State of New South Wales are applicable in the Australian Capital Territory so that simple larceny as at common law is an offence in that Territory. At common law, larceny is taking and carrying away the personal goods of another from any place with the felonious intent to convert them to the taker's own use, and to make them permanently his own property without the consent of the true owner. Statutory extensions of the common law effected by the Crimes Act of New South Wales and operative in the Australian Capital Territory include in the property which is susceptible of larceny any valuable security, which by definition includes a cheque (see s. 134, Crimes Act, 1900). By virtue of s. 162 of the Crimes Act, also operative in the Territory, one of the joint owners who steals or embezzles any property belonging to the joint owners may be convicted of larceny as if he were not a joint owner of the property stolen. Section 3 of the Crimes Ordinance 1931 of the Australian Capital Territory provides that whosoever having received any money upon terms requiring him to account for the whole or any part of such money, fraudulently misappropriates to his own use the whole or any part of such money, commits an offence. Provision is made in s. 120 of the New South Wales Act operative in the Territory for an alternative verdict of fraudulent misappropriation upon an indictment of larceny if that offence is found to be proved. (at p329)

7. The counts in the indictment of the applicant were that as one of two joint owners he stole the three several amounts of dollars withdrawn by him from the Commonwealth Savings Bank, Ainslie, in April 1967, the property in the "money" being laid in each charge in the joint owners. (at p329)

8. The learned trial judge in his charge to the jury said: "Now, so far as this charge of stealing is concerned, gentlemen, the law provides that although two people may own property jointly, such as money in the bank, as in this case, nevertheless, it is possible for one joint owner to steal the money of another joint owner and that is the charge in this case. Now, a charge of stealing means this, in this particular case, that the accused without the consent of the co-owner, Mrs. Webster, wrongfully and without any claim of right made in good faith, took possession of these joint moneys in the bank, with intent to deprive Mrs. Webster, the other joint owner, permanently of such moneys and when you say he did this wrongfully, in this case the wrongful act consists - or the wrongful intent consists in his intending to appropriate the moneys to his own use, of course, without her consent." Later, his Honour said: "But it is this expression, 'without a claim of right, made in good faith', that may need some little further explanation. The fact, gentlemen, that the accused person had a right to draw the moneys from the bank, or perhaps I should say, rather than a right to draw the moneys, an authority to draw the moneys from the bank, does not mean that he was entitled to deprive her of her savings, of her share in these joint moneys, unless, of course, he had her consent; and it is quite erroneous to suggest that because he was authorized to sign cheques and her signature was not necessary that that gave him a right to the moneys that were in the bank to her exclusion entirely. She had just as much right to these moneys as he had." A number of objections were made to the summing up by counsel for the applicant but none called in question the appropriateness of the charges of larceny to the facts of the case. (at p329)

9. The applicant was convicted on each charge and sentenced to twelve months' imprisonment in respect of each conviction, such sentences to be served concurrently. On this application, counsel for the applicant has submitted that the evidence led by the prosecution did not support the charges of larceny and that for that reason the convictions should be set aside. A number of other submissions critical of the manner in which the trial judge left the matter to the jury were made. But, having regard to the view I have formed upon the principal submission, I refrain from expressing any opinion upon the propriety of the summing up in any of the respects to which our attention has been called, except in so far as it is necessary to refer to it in connexion with a submission that this Court should order a new trial if it should come to the conclusion that the convictions should be quashed. (at p330)

10. This case, in my opinion, is in somewhat the same situation as that dealt with by Lord Goddard in Reg. v. Davenport (1954) 1 WLR 569; (1954) 1 All ER 602 His Lordship said, as I would respectfully repeat of this case, "For some reason or another the indictment charged the appellant with stealing all this money. That could only have been done, I think, because throughout this case there was a misapprehension, under which everyone seems to have been, with regard to the more or less elementary principles of the law of banking and the law of larceny" (1954) 1 WLR, at p 570; (1954) 1 All ER, at p 603 (at p330)

11. As I have indicated, larceny consists in the taking and carrying away of the property of another without his consent, and without colour of right, intending at the time of the taking permanently to deprive the owner of that property. It follows that there must be what is called an asportation. Therefore, apart from any special statutory provision, larceny can only be committed of property which is capable of physical possession and removal. It also follows that to constitute larceny, the property must be removed, except in the case of larceny by a bailee, from the possession of some other person against the will of that person. The special doctrine relating to larceny by a bailee was made to conform to these requirements by treating the larcenous bailee as converting the nature of his possession at the moment he formed the intention to steal. (at p330)

12. The subject matter of the instant charges was money, in each case expressed as a number of dollars, that is, paper money, or coin to the stated face value. That can be asported and be the subject of larceny. But, though in a popular sense it may be said that a depositor with a bank has "money in the bank", in law he has but a chose in action, a right to recover from the bank the balance standing to his credit in account with the bank at the date of his demand, or the commencement of action. That recovery will be effected by an action for debt. But the money deposited becomes an asset of the bank which may use it as it pleases: see generally Nussbaum, Money in the Law: s. 8, p. 103. Neither the balance standing to the credit of the joint account in this case, nor any part of it, as it constituted no more than a chose in action in contradistinction to a chose in possession, was susceptible of larceny, though it might be the subject of misappropriation: see also on this point the judgment of Lord Goddard in Reg. v. Davenport (1954) 1 WLR 569; (1954) 1 All ER 602 with which I respectfully agree. (at p331)

13. The receipt of the paper money or coins by the applicant from the bank could not have been larcenous for several reasons. In the first place, the transference of possession of that paper money or coin was voluntary on the part of the bank: it was not a taking of that paper money or coins out of the possession of the bank against the will of the bank. Secondly, if it matters, that paper money or coins was not taken out of the possession of the joint owner of the bank credit, Mrs. Webster; for she never did have possession of that paper money or coins: nor did the bank at any time hold possession of that money as in any sense her agent. Further, the property in that paper money or coins was in the bank immediately before it was handed over to the applicant, and not in Mrs. Webster, or Mrs. Webster and the applicant jointly. And, lastly, as I see the evidence of the suggested arrangement between the applicant and Mrs. Webster, the property in and possession of the money or coins, in my opinion, passed to the applicant solely, even if on receipt of them he came under an obligation to account to Mrs. Webster for all or some part of the "money" they represented. No critical attention was paid in the summing up to the question of what was the actual arrangement between the applicant and Mrs. Webster. It was assumed in the passages which I have quoted that the "moneys" in the bank were the joint property of the two, in the sense that each owned half, or at any rate that each had a definable share. But that conclusion does not necessarily flow from what was proved. The precise arrangement would in the first place be a matter of fact for the jury under proper direction. But, in my opinion, there was no evidence at all upon which it could be found that the paper money or coins withdrawn by either the applicant or Mrs. Webster, were themselves to be held on behalf of both, pending the use of the specific coinage for the stated purpose. The most that could be drawn, in my opinion, from that evidence was that if either withdrew any of the credit of the account, he or she would be accountable. In deciding what the arrangement really was, a jury would no doubt be reminded that it should not overlook the fact that the pair had been living on the earnings of the applicant, which may well have been much in excess of the salary of Mrs. Webster. However, I shall later return to the significance of the absence of any consideration of, or direction upon, the nature of the actual arrangement which was made in connexion with the Bank account. It would, therefore, seem to me that the radical elements of larceny were missing in this case. Of course, s. 162 was material in the case but it was not the source of liability. It does no more than remove the objection that one joint owner could not at common law be guilty of larceny of the property jointly owned. It simply requires that he be treated as if he were not a joint owner. It does not remove the necessity for all the elements of larceny to be present: see, for example, in Reg. v. Neat(1899) 69 LJ QB 118, at p 120 per Wills J., and per Wright J. (1899) 69 LJ QB, at p 121 But it does allow a part owner to be a bailee for his co-owner where otherwise he would be a bailee for both of property susceptible of larceny. (at p332)

14. But it was submitted for the Crown in opposition to the grant of leave that the convictions for larceny were maintainable because when the applicant received the money he came under an obligation to apply "it" for the purposes of the joint owners, and that it was larceny to form and carry out an intention to apply "it" to his own purposes exclusively. But, in my opinion, this proposition is unacceptable. It confuses the senses in which the word money is used in the law and fails to observe a fundamental distinction between larceny and fraudulent misappropriation: see in this connexion the analysis of Jordan C.J. in R. v. Ward (1938) 38 SR (NSW) 308, at pp 315 et seq (at p332)

15. If the arrangement between the parties was that, whilst each might, neither would, withdraw the money without the particular consent of the other, the withdrawal of money by the applicant would not be criminal unless attended with a fraudulent intention to misappropriate the money: in which event it would not be larceny but, if anything, fraudulent misappropriation. (at p332)

16. If the arrangement was that, although either might withdraw the credit standing in the account, and so reduce the "fund" - to use a neutral term - into his own possession, but so that, none the less, the fund would be held for use exclusively in furtherance of agreed purposes, it would be fraudulent misappropriation at the time when a fraudulent intention was formed not to apply the "fund" to the stated purposes, but to employ it for the sole purposes of the party withdrawing it from the bank: but again it would not, in my opinion, be larceny. (at p332)

17. But, if the arrangement was that the party withdrawing the fund would hold the specie, the actual paper money or coins received from the bank, and apply that only for the stated purposes, it might be argued that the applicant by withdrawing the credit in the account, and accepting the specie from the bank, agreed with his co-owner or mutually consented that he would hold the specie, presumably as bailee, until it was paid over in pursuit of the agreed purpose. For my part, such an argument should fail, even if the agreement in that sense was made out. For, in my opinion, even so, as I shall later mention, he would not be a bailee of the specie, so as to be in a position to commit the offence of larceny as a bailee. Of course, none of these possible arrangements were put before the jury : and in my opinion, there was no evidence upon which either the first or third possibilities could have been found to have existed in fact. (at p333)

18. It seems to me that the submission of the Crown in respect of the convictions for larceny really amounts to an assertion that the applicant became a bailee of the paper money or coin for the joint owners, and that he committed larceny as a bailee when he formed the intention to take the paper money and coin to deposit it to his own credit with his bank. But, other considerations apart, as I have indicated, I do not think he could be such a bailee. It is settled beyond dispute that to constitute a bailment there must be a delivery, actual or constructive, by the bailor, whether owner or possessor, or by his duly authorized agent, i.e., authorized to create the bailment, to the bailee, so that something which requires the physical possession of the chattel bailed, be done with, or to it, or that it be kept against its return to the bailor. This is so, though by the second paragraph of s. 125 of the New South Wales Crimes Act there is no need for any agreement by the bailee to restore or deliver the specific property delivered to him. (at p333)

19. Here the suggested subject of the bailment was the paper money or coins. Mrs. Webster did not pass possession of it to the applicant: nor was the bank an agent of Mrs. Webster to bail the paper money or coins to the applicant for, in my opinion, neither the nature of the bank account, nor the ability of either of the depositors to withdraw the whole or part of the money, constituted the bank such an agent. Finally, on any view of the evidence, in my opinion, it could not be held that the applicant was required, either to do some particular thing or act with the paper money or coins or to return it or them to the bailor. This is so, in my opinion, even if it be correct to say that, upon Mrs. Webster's account of the matter, the applicant was bound to account for the "money" withdrawn. The actual paper money or coins was, in my opinion, even in that case his own and he was under no obligation not to use it for his own purposes. He was not, in my opinion, a bailee of it. (at p333)

20. I have indicated my doubt that it was established that he came under an obligation to account to Mrs. Webster, or to apply the money in any particular way, at the time he received from the bank the amount withdrawn from the bank account. It was a joint account with a right in each to withdraw. Whether or not there was evidence of a legally-binding arrangement as to the ultimate use of the amount standing in it may be doubted: and in default of such an arrangement it may be that either could withdraw the whole or any part without coming under any obligation to account. Whether or not the proceeds of the account were joint property is not answered merely by the fact that, in the circumstances, the account was in the joint names. Further, even supposing such an agreement as to the use of the proceeds of the joint account, it does not follow that it extended to require the amount to be kept in that account: the ability of either to withdraw from the account might be thought to tend against such a construction of these arrangements. These considerations are not of critical importance in connexion with my treatment of the submission with which I am presently dealing. But they indicate that, on any view, the summing up was not adequate; also they are of importance in connexion with the suggestion that an alternative verdict of fraudulent misappropriation might have been returned by the jury. (at p334)

21. If the correct conclusion of fact is that there was a binding arrangement of a kind to be legally enforceable that the credit in the account should only be used for a sufficiently defined purpose, and that the withdrawal of the balance in the account by the applicant, itself evidenced his intention to use the proceeds for some purpose unconnected with the agreed purpose (which I doubt), the applicant none the less, in my opinion, would not commit larceny, but might be found guilty of misappropriation. (at p334)

22. For these reasons, in my opinion, the convictions should be set aside on the ground that there was no evidence to support them. There then arises the question whether any further order should be made. It was not suggested that this Court should substitute convictions for misappropriation but it was submitted that there should be an order for a new trial. Although s. 36 of the Judiciary Act 1903-1959 (Cth) gives this Court power in any case which has been tried to order a new trial, there would seem to me to be no warrant in this case for making such an order. The accused has been put in jeopardy upon an indictment and the Crown has called, in my opinion, no evidence to support it. Whilst it may be said that had the Crown chosen to pursue that course, it could have requested the trial judge to direct the jury that they could bring in the alternative verdict, not only did the Crown not do so, but it supported the summing up of the learned trial judge of which I have quoted the significant portions. Upon that summing up, there would have been no room for an alternative verdict. A summing up in relation to fraudulent misappropriation would, of necessity, have been different. The jury would have had to determine whether there was in fact a binding agreement as to the use of the proceeds of the account and, also, perhaps, whether that agreement required the moneys to be retained in that particular account. In addition, the precise intent of the applicant when withdrawing the moneys would have had to be considered under a much more precise direction than the somewhat general direction, in fact, given by the trial judge in relation to larceny. (at p335)

23. Further, the applicant was sentenced to twelve months' imprisonment in respect of his conviction on each count, the sentences to be concurrent. At the time of the delivery of this judgment, he is still serving these sentences. Even if otherwise there was room to exercise a discretion as to ordering a new trial, in my opinion, this is not a case in which we should do so. (at p335)

24. In my opinion, no other order should be made than that leave to appeal be granted, the appeal allowed and the convictions quashed. (at p335)

MCTIERNAN J. In my opinion leave to appeal should be granted, the appeal allowed and the conviction quashed. I have read the reasons for judgment of the Chief Justice and have nothing to add. (at p335)

MENZIES J. The appellant - who both appeals and seeks leave to appeal pursuant to s. 52 of the Australian Capital Territory Supreme Court Act 1933-1959 (Cth) - was convicted in the Supreme Court of the Australian Capital Territory upon a number of counts of stealing money, the joint property of himself, and one Helena Webster. What the appellant did on each occasion was to withdraw money from a savings bank account in the joint names of himself and Mrs. Webster - which as between the bank and the depositors either was entitled to withdraw - and to deposit the money withdrawn on his own account for his own use. Mrs. Webster had no right to operate upon the appellant's account. It was, in fact, Mrs. Webster's money that had been deposited in the joint account, but, that is not material for the present purposes, because - subject to a defence that Mrs. Webster had given her interest in the account to the appellant - the undisputed basis of the charge was, that the amount at credit in the account was owed to Mrs. Webster and the appellant jointly. (at p336)

2. The offence with which the appellant was charged, i.e., stealing money of which he was a joint owner, depended upon s. 162 of the Crimes Act, 1900 (N.S.W.), which provides, inter alia, that if a joint owner steals property belonging to himself and another jointly, he may be convicted for the offence "as if he was not . . . one of such joint owners". (at p336)

3. This section which first appeared in New South Wales in the Criminal Law Amendment Act, 1883, s. 124, was copied, with immaterial variations, from 31 and 32 Vict. c. 116, s. 1, The Recorder's Act. Before examining s. 162 further it is worthwhile referring to the Larceny Act, 1916 (U.K.), ss. 1 and 40. Section 40, sub-s. (4), repeats s. 1 of The Recorder's Act, but in s. 1 there is a definition of stealing which is as follows:

"1. For the purposes of this Act - (1) A person steals who, without the consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof: Provided that a person may be guilty of stealing any such thing notwithstanding that he has lawful possession thereof, if, being a bailee or part owner thereof, he fraudulently converts the same to his own use or the use of any person other than the owner: (2) . . . (iii) the expression 'owner' includes any part owner or person having possession or control of, or a special property in, anything capable of being stolen."

As appears from Kenny's Outlines of Criminal Law, 19th ed. (1966), p. 264, the Lord Chancellor in introducing the Larceny Act, 1916 in the House of Lords said: "The Bill . . . is nothing but a careful compilation of all the existing law relating to larceny and kindred offences. . . . This Bill has faithfully consolidated the existing law and not imposed anything new." The learned authors add that the words "existing law" must be taken to mean both common law and statute law. The first part of the definition of stealing is of course no more than the common law definition. The proviso however reflects statutory extensions of the crime of larceny. The extension of the definition of "owner" was no doubt intended, inter alia, to accommodate s. 40, sub-s. (4). (at p336)

4. Although the provisions of the Larceny Act, 1916 (U.K.) have not been copied in New South Wales, they do help, I think, to understand s. 162 of the Crimes Act (N.S.W.) bearing in mind that the Larceny Act, 1916 states the law as it is still in force in New South Wales and the Australian Capital Territory. The basis of s. 162 is that one co-owner could always in a sense "steal" from another for the section applies only if a joint owner "steals" jointly-owned property. What the section is designed to do is to deprive a co-owner who "steals" of any answer to a charge of larceny based upon his co-ownership of the property "stolen". The fact of an accused person's joint ownership of property alleged to have been stolen by him, could provide at least two answers to the charge. The first is, of course, that being a joint owner it could not be established that the "taking" was without the consent of the owner. The second is that, as the possession of one joint owner is the possession of all the joint owners, a joint owner could not at common law "take and carry away" jointly-owned property. It was only in very exceptional circumstances that an action for trespass would lie by one joint owner against another in respect of jointly-owned property: Jacobs v. Seward (1872) LR 5 HL 464 "Unity of possession" is one of the four unities essential to a joint tenancy, and a judgment for possession against one of two joint tenants is ineffective. See Gill v. Lewis (1956) 2 QB 1 and Fairclough (T.M.) &Sons Ltd. v. Berliner (1931) 1 Ch 60 In Pollock and Wright - Possession in the Common Law - it is stated at pp. 212 and 213 that at common law, one of several co-owners cannot commit theft in respect of jointly-owned property "for all have possession and right to possession in common". There is indeed but one possession of jointly-owned property. In Hale's Pleas of the Crown, vol. 1, p. 512 it is said: "Regularly a man cannot commit felony of the goods, wherein he hath a property. If A. and B. be joint-tenants or tenants in common of an horse, and A. takes the horse, possible animo furandi, yet this is not felony, because one tenant in common taking the whole doth but what by law he may do." (at p337)

5. It is with this second aspect of s. 162 that we are particularly concerned here, for, properly understood, the legal basis of the charge against the appellant must have been, that, when he received the money withdrawn from the joint account, he received it as jointly-owned property of which Mrs. Webster had possession with him and through him. Accordingly, the money being in the one possession, his and hers, he stole by taking it for himself and excluding her from it. In these circumstances the particular question here - and one which was not adverted to by counsel at the trial - is whether the money which the appellant received from the bank was, in law, money jointly owned by Mrs. Webster and himself. As I have said it seems at the trial to have been assumed that it was, subject, of course, to the defence that Mrs. Webster had in effect given the accused the money in the account - a defence which the jury must have rejected. The point that, on the evidence, there could here be no "taking" was however raised in this Court and this problem must now be determined. (at p338)

6. The proceeds of the realization by joint owners of the jointly-owned property - even if it be money - is normally held as joint tenants unless and until the proceeds are divided among them. See Hayes' Estate (1920) 1 IR 207 and The Law of Real Property, Megarry and Wade, 3rd ed. (1966), p. 440. The statute 4 Anne c. 16, s. 27 which, inter alia, entitles a joint owner to bring an action of account against another joint owner who had received more than his share of the proceeds of joint property which has been sold is based upon the assumption that the proceeds of the property jointly owned are held as joint property. See too Jacobs v. Seward (1872) LR 5 HL 464 Accordingly, it would, I think, be in keeping with sound principle to regard moneys withdrawn from a joint account in a bank as the joint property of the persons from whose account it has been withdrawn in the absence of evidence or circumstances pointing to the contrary conclusion. If moneys from a joint account were to be withdrawn by and paid to an agent of the joint owners whose duty it was to bring it to them, the money which the agent received would be joint property and I see no reason why it should not also be joint property when money withdrawn from such an account is paid to one of the owners of the joint account. If this be not so, it is not easy to see what happens to the rights of property of the joint owner who does not actually receive the money. (at p338)

7. At this point it is necessary to refer to a line of cases dealing with joint bank accounts in the names of spouses. These are authority for the proposition that, in the absence of express agreement or facts or circumstances which indicate that the account was kept for some limited purpose, either spouse can draw on it, not only for the benefit of both spouses, but, for his or her own benefit, In re Young; Trye v. Sullivan (1885) 28 Ch D 705; Gage v King (1961) 1 QB 188; Re Bishop (deceased); National Provincial Bank Ltd. v. Bishop (1965) Ch 450; (1965) 1 All ER 249 Where this rule applies it would not be correct to regard money withdrawn from a joint account without more, as joint property. A close reading of the cases does indicate, however, that they depend entirely upon the special relationship of husband and wife. Their authority ought not, in my opinion, to be extended to cases where that relationship does not exist in the absence of special circumstances. The argument that a like rule applies when the joint bank account is in the name of a man and his mistress - which was the relationship between the appellant and Mrs. Webster - is not one that I am prepared to accept as a general proposition. One relationship is, ideally, permanent - the union of one man and one woman for life; the other is, by nature, impermanent, and might hardly endure under the pressure of the temptation to each to empty the joint account for himself or herself. A doctrine appropriate for one relationship is obviously inappropriate for the other. (at p339)

8. The criticism of the charge that it did not instruct the jury that the rule established by the cases just cited applied to the account in the name of the appellant and Mrs. Webster, therefore, fails. Did the rule apply it would not, I think, have been to the point upon appeal that there was, at the time, some evidence that the account was kept for a limited purpose. A clear direction about the whole matter would have been necessary notwithstanding that this point was not taken at the trial. (at p339)

9. During the hearing before us some reference was made to Slattery v. The King (1905) 2 CLR 546 where it was held that an agent, who fraudulently misappropriated balances of moneys received and disposed of by him on behalf of his principal, could not be convicted of larceny. In that case, however, the particular question was whether the money which Slattery - the agent - had received from debtors of his principal became the property of his principal, and it was decided that it did not. Thus Griffith C.J. said: "It was not consistent with the terms of his employment as agent, as stated in her evidence, that he was to treat all the sovereigns, cheques, and bank notes which he received as her specific property. If, for instance, this property had been picked out of his pocket while he was carrying it about, the thief could not have been charged with stealing Mrs. Scanlon's money. It is clear from her instructions and the course of dealing between the parties that the property was to be dealt with as a mixed fund, out of which he was to make payments on her behalf, and account to her for the balance. At common law that was not a bailment, because the money was received under such circumstances that the specific money received was not to be handed over to her" (1905) 2 CLR, at pp 557, 558 (at p340)

10. That decision has, I think, no bearing upon the particular question here, namely, whether moneys withdrawn from a joint account by one of two joint owners, who are not spouses, is jointly-owned property. (at p340)

11. Because I have found no authorities, other than the line of cases already mentioned and distinguished, dealing directly with the ownership of moneys withdrawn from a joint account, it is perhaps desirable to state my understanding of what happens to the ownership of moneys paid by a bank to a depositor. The money, of course, is originally in the ownership and possession of the bank. When, in accordance with its mandate, the bank transfers the money to some person presenting the requisite book and withdrawal form it parts with both its possession and property. It intentionally transfers possession to the person effecting the actual withdrawal, but the destination of the property does not depend upon the intention of the bank. That depends upon other circumstances. Thus if the person effecting the withdrawal is an agent to receive the money, make disbursements and account for the balance, the ownership passes to him to account for the money to his principal. Slattery v. The King (1905) 2 CLR 546 is authority for this. However if the money happens to be paid to a person whose mandate is to bring the very money he receives from the bank to his principal, the depositor, then the ownership passes directly from the bank to the depositor. The bank in making the payment would not normally know what happens to the ownership of the money that it pays; with that it is not concerned; its duty is to give possession in accordance with a proper mandate. When the payment is made directly to the depositor, of course, both possession and property pass to him, and when the payment is made to one of two persons with a joint account, the possession, and I think the property in the money, pass immediately to the joint owners of the account as joint owners, in the absence of a special arrangement or special circumstance. In the absence of any evidence of special circumstances here - for the jury must have rejected the defence of a gift from Mrs. Webster to the appellant - I think the appellant did receive possession and property as a joint owner of the money in question when the bank paid it to him. (at p340)

12. Having reached the conclusion already stated upon what seem to me to be the substantial questions in the case, I think the appeal should be dismissed, and the application for leave to appeal should be refused. The learned judge's charge to the jury did, I think, leave to them what were substantially the right issues for their decision, although, as I have said, the strict legal position was not defined no doubt because no attention was given to it. Counsel for the appellant did criticize the summing up and the Crown's case in a number of particulars, but these criticisms have not persuaded me that the trial miscarried or that justice requires that the appellant should be retried if upon the evidence he could have been lawfully convicted. This, I think, was the case. (at p341)

13. The sentences imposed upon the appellant were imprisonment for twelve months on each count, the sentences to be served concurrently. It was argued that this was too severe. I do not agree. If the jury disbelieved the appellant, as they must have done to convict him, he was guilty of a very mean and disgraceful piece of dishonesty. (at p341)

Orders

Leave to appeal granted. Appeal allowed with costs. Verdict conviction and sentence quashed.